A word to the unwise

Recently, in United States v. Marsh, No. 38688 (A.F. Ct. Crim. App, Apr. 19, 2016), the (unnamed and not me or several of my closest friends) civilian defense counsel was held in contempt for late filing of a motion. It appears this was not the first time in the case for the same counsel of missed deadlines. The decision drew some angst among the military justice literati. Based on the facts as written in the opinion, I’m not troubled by the decision. We must wait a few weeks to see whether the appellant will petition CAAF (will let you know).

Today I’m reading and reviewing a new record of trial (Air Force as well). It appears the defense filed a significant motion the day before trial. The prosecution asserted they were not prejudiced by the late filing. The military judge had this to say.

MJ: Understood. This seems part of a disturbing trend of counsel thinking that the week before trial is the time to begin case preparation. I’ve also heard this in the context of a request for continuance or docketing request that counsel feel the need to, as of right, have a week on site before every case, and I’ll just remind counsel that case preparation is an ongoing endeavor that should begin when the evidence is received, if not beforehand, and I really see no valid excuse for failure to file these motions in a timely manner. That being the case, as I stated, it’s just fraught with appellate peril for me to impose any sanction of any sort, so I find it somewhat amusing that I read comments from defense counsel saying that we don’t do enough to hold trial counsel’s feet to the fire when they violate discovery obligations, but correspondingly, the defense counsel basically has carte blanche, absent me pulling out the extreme contempt gavel, to ignore the scheduling orders of the court. And so it’s with great consternation that I will not impose any sanction at this point. The accused should not be the one who has to suffer for his dilatory counsel.

(R. 147.)

“This seems part of a disturbing trend of counsel thinking that the week before trial is the time to begin case preparation. I’ve also heard this in the context of a request for continuance or docketing request that counsel feel the need to, as of right, have a week on site before every case[.]”

I plead Not Guilty to the first part of this comment, but I plead sorta guilty to always wanting to have a minimum of two-three days on the ground prior to start of trial. That time is not to start preparations but to do final preparations–I agree preparation is an ongoing process.

I plead guilty to at times complaining about the timeliness of prosecution discovery. My problem with lateness on the part of the prosecution is in fact the effect of the practice the judge’s snippet above tells us.

It is the trial counsel who doesn’t start preparation until a week before trial–or until the STC arrives the week before trial starts, and then we get a deluge of discovery–that, judge’s, is where I want you to hold the government’s feet to the fire–this is an unfortunate ongoing trend for which the defense usually suffers.

I don’t like getting hundreds or thousands of pages of discovery the day before trial, especially when the trial counsel objects to me having a reasonable time to study the new material. I’m apt to complain about that, especially when the prosecution didn’t start it’s preparations until that week before trial.

Defense counsel, I’m agreeing with the military judge here that we need to be timely.

Even though United States v. Gilley, 59 M.J. 245 (C.A.A.F. 2004), might be helpful when applying court rules or orders, don’t fly the edge on filing deadlines.